Barney Frank

U.S. Rep. Barney Frank on Wednesday, March 30, announced he would soon re-introduce the Employment Non-Discrimination Act (ENDA), characterizing it as “winnable.”

But the bill, which seeks to prohibit discrimination based on sexual orientation and gender identity by employers, is unlikely to move during the current Congressional session—primarily because the Republican Party controls the House.

The bill is typically assigned to the House Committee on Education and Labor, now chaired by Rep. John Kline (R-Minn.). In 2009, during a committee hearing on the bill, Kline said his many concerns about the bill in previous years had “not been alleviated” by its recent rewrite.

Between 2007 and 2009, the bill added “gender identity” and also provided exemptions for religious organizations. Some form of religious exemption has existed in ENDA since the first ENDA text was submitted in 1994, but in 2007, the language concerning the exemption was given greater definition and clarity.

Diego Sanchez, a spokesman for Frank, said the language in this year’s bill is “exactly” as the one from last Congressional session.

The bill reads, “This Act shall not apply to a corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil 23 Rights Acts of 1964….”

Kline said back then that ENDA “creates an entirely new protected class that is vaguely defined and often subjective.” Specifically, he objected to the language of the bill prohibiting discrimination based on “perceived sexual orientation.”

“Attempting to legislate individual perceptions is truly uncharted territory,” said Kline, “and it does not take a legal scholar to recognize that such vaguely defined protections will lead to an explosion in litigation and inconsistent judicial decisions.”

Kline also said he thought legislators should consider the “consequences” ENDA might have on “religious and family-based organizations.”

A press person for Kline’s committee office did not return a call by deadline Wednesday but, given that the language of the bill has not changed since 2009, there seems little likelihood that Kline will enable a committee hearing or vote on the bill this session.

Still, supporters of the measure say it’s important to have the bill in the Congressional hopper, as it provides a tool around which supporters can lobby legislators to support the measure in a future session.

Julie Edwards, a spokeswoman for Senator Jeff Merkley (D-Ore.), said Wednesday that Merkley is working with his fellow co-sponsors to prepare ENDA for re-introduction there “in the next few weeks.”

The Senate is still controlled by Democrats and the bill received a hearing in the last session. But it did not get a vote in committee.

The last time ENDA got a vote in the Senate was 1996, when it came within one vote of passage. The Senate was controlled then by Republicans.

A version of ENDA passed the House in 2007.

But in both the House and Senate votes, the version of ENDA on the floor was one that included only sexual orientation, not gender identity.

By 2009, the LGBT community of organizations stood firm to insist that ENDA also include a prohibition on discrimination based on gender identity. And in 2009 as well as this year, ENDA does include both.

The Transgender Legal Defense and Education Fund issued a press release Wednesday, saying that 47 percent of transgender people surveyed reported being fired or denied a job because they are transgender.

The “gender identity” language would protect not just people who are transitioning from one sex to another, but also those whose outward appearance does not conform with common expectations for their gender. The language of the bill defines gender identity as: “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”

A press release from Frank’s office noted that there are no laws in 29 states to prohibit sexual orientation discrimination in employment and none in 38 states to prohibit gender identity discrimination.

Human Rights Campaign President Joe Solmonese issued a statement, pitching ENDA as a jobs bill, an appeal that would presumably attract more Republican support.

“Passing ENDA is a key element of making sure all Americans can get back to work and get our country moving again,” said Solmonese.

Lambda Legal Executive Director Kevin Cathcart took a similar approach, saying, “With ENDA now re-introduced, it is time for Congress to make good on its promise to focus on the top priority of all Americans – good jobs and economic security.”

Republicans have said publicly they want to focus on jobs.

But Republicans have also indicated they want broad exemptions for religious organizations, and that is something that does not set well for many supporters of ENDA.

In a little bit of intrigue, Frank’s press release on Tuesday and Wednesday indicated he would have an important announcement concerning ENDA. That prompted many people to expect Frank would actually introduce the bill Wednesday.  But instead, he said he would try to sign up additional co-sponsors for the legislation before introducing the bill.

Interestingly, too, two of the House’s four openly gay members—Reps. Tammy Baldwin and David Cicilline—were not listed in Frank’s press release and did not attend the press conference. But spokespersons in both offices said the issue was one of scheduling and that both intend to co-sponsor the bill.